SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Mathieu Pahle
BEFORE: Justice A. Doyle
COUNSEL: Monica Heine, Counsel for the Crown
James Harbic, Counsel for the Accused Applicant
HEARD: September 11, 2017 (Cornwall)
AMENDED DECISION
Correction notice: This document has been amended from the original decision released on 20171116. See attached amendment.
Rulings on Garofoli application and charter Motion
The Applicant, Mathieu Pahle, is charged with one count of possession of child pornography contrary to section 163.1(4) of the Criminal Code of Canada.
On September 19, 2014, a warrant to search was issued by Justice of the Peace Guindon based on an Information to Obtain (ITO) dated September 17, 2014, prepared by Detective Constable Mark Anderson (the officer).
An execution of the warrant took place on September 19, 2014, which resulted in the officer obtaining child pornography located on a laptop computer and two small memory cards from the Applicant’s residence at 334 Ellen Avenue in the City of Cornwall. The devices divulged 9888 images of child pornography and 105 movies of child pornography.
At the preliminary inquiry held on November 12, 2015, the officer gave evidence on the ITO pursuant to a Dawson hearing. In addition, the Applicant was granted leave to cross-examine the officer as the affiant of the ITO before me. The Court has benefit of the transcript of the preliminary inquiry and the agreed facts as stated by counsel.
The Applicant brings a Garofoli application to quash the warrant to search because the ITO, even after excision/amplification, could not have supported the issuance of a warrant. He challenges the warrant by way of a sub-facial challenge attacking the reliability of the contents of the ITO, and he attacks the warrant by way of facial validity challenge on the basis that the warrant form used was an outdated form, often referred to as a “Branton error”.
He also brings a motion to exclude the evidence obtained in the course of the search pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that his rights under s. 8 of the Charter were breached as the officer failed to report to the justice as soon as practicable pursuant to s. 489.1(1) of the Criminal Code, and that subscriber information was obtained without a warrant contrary to the R. v. Spencer, 2014 SCC 43 decision.
Part 1: Garofoli Application
Analysis
A warrant under s. 487 of the Criminal Code may be issued where a judge or justice is satisfied, by information on oath, that there is in a building, receptacle or place “anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence” against the Criminal Code or other Act of Parliament.
As set out by the Supreme Court of Canada in R. v. Araujo, 2000 SCC 65, the primary task of the reviewing judge on the sub-facial challenge of a warrant is to consider whether, on the record before the authorizing justice as excised or amplified on the review, the authorizing justice could have issued the warrant, without substituting his or her view for that of the authorizing justice.
At para. 29 of R. v. Araujo, the Supreme Court states:
Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests. The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant. He or she should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems too wide or too vague. The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. The judge should remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and law enforcement agencies. Parliament and the courts have indeed recognized that the interception of private communications is a serious matter, to be considered only for the investigation of serious offences, in the presence of probable grounds, and with a serious testing of the need for electronic interception in the context of the particular investigation and its objects (cf. Smyk, supra, at p. 74). There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry. [Emphasis in original.]
Essentially, an officer has a duty to set out the facts fully, fairly and frankly to the authorizing justice in order that he or she can make an assessment of whether the facts rise to the standard required in the legal test for the warrant.
Regarding particularity, a search warrant and the ITO must provide a sufficiently particular description of the offence being investigated, the items to be seized, location and the informant’s grounds for believing that an offence has been committed.
An ITO is not held to the standard of particularity in an indictment or Crown brief. See R. v. Church of Scientology (no. 6), 31 C.C.C. (3d) 449 (Ont. C.A.).
I will now deal with each of the areas of concern raised by the Applicant.
2010 Date
- The ITO at page 3 states the following:
On the 22nd of October 2010, the National Center for Missing and Exploited Children (NCMEC) forwarded a complaint they received from Google Inc. to the National Child Exploitation Coordination Centre (NCECC).
The reference to the date of October 22, 2010, was an error and that date had no connection to this case. At the preliminary inquiry, the officer confirmed that this date was written in error.
The remainder of the ITO refers to the date of January 20, 2014, on several occasions:
On page 3 at para. D1: On January 20, 2014, the NCMEC received a complaint from Google Inc. advising that a subject of interest was using an email address to upload images of child pornography.
On page 5 at para. 12 when it states that it is reasonable that if the accused had child pornography in his possession on January 20, 2014, he would still have child pornography in his possession today.
On page 7 at para. 4, it refers to the date of January 20, 2014, on which an image of child pornography was uploaded from a computer with IP address 67.193.9.34.
Of relevance to this issue is a statement attributed to Dr. Peter Collins from the Criminal Behaviour Analysis Unit of the OPP, who is an expert in sexually deviant behaviour. His statement, included in the ITO, suggests that the collection of pedophilic images is constant and over time, it tends to increase.
The Applicant submits that the incorrect use of the date “amplifies the statement attributed to Dr. Collins”. In fact, there was only one occasion on which the email in question was observed accessing child pornography, which occurred on January 20, 2014. This is a matter of months before the ITO was signed, rather than years as suggested by the October 22, 2010 date. The Applicant submits that the incorrect date, coupled with the reference to Dr. Collins’ conclusions, give credence to the size of the collection and this information is misleading.
As stated in R. v. Burke, 2013 ONCA 424 at para. 21, my role as a reviewing judge is a limited one. I must decide whether any part of the ITO is incorrect, misleading or unreliable and whether that information may be excised. The redacted ITO is then considered afresh to determine if it meets the tests of the issuance of the issuing justice.
At his cross-examination before me on September 11, 2017, the officer confirmed that the October 22, 2010 was mistake and he did not have a “good explanation” as to the use of the incorrect date. His reference to Dr. Collins was to explain that, with the passage of time, the amount of child pornography saved on a computer increases.
The Court finds that the officer’s reference to an improper date was a careless drafting error. The Court finds that, based on the evidence of the officer and the fact that the remainder of the ITO referred to the year 2014, this error in the date was a slip by the officer and there was no intention to mislead. The statement from Dr. Collins is not tied to the date as it occurs two pages later. Dr. Collins’ statement is a general statement essentially opining that if an individual downloads child pornography, it would continue over time and the collection would increase. However, the issuing justice, when seeing the October 2010 date, may have had the impression that the collection of child pornography may have been occurring over a few years as opposed to a few months.
As stated in R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, “errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation”.
Therefore, the words in paragraph CI on page 3, “On the 22nd of October 2010”, will be excised and para. 10 on page 5 starting with “As such I reached out Dr. Peter Collins…” and Dr. Collins’ response are excised from the ITO.
IP Addresses
The ITO refers to one IP address provided by Google Inc. where the individual had obtained documentation from an email address through the IP address 67.193.9.34. At the preliminary inquiry, Detective Constable Anderson admitted that within the NCMEC documentation there were three Internet provider addresses. He stated that he did not think that the fact that there were two other IP addresses was necessary to include in the ITO as they were out of his jurisdiction in the province of Quebec.
The Applicant submits that the information of two other IP addresses used by the email address should have been included in the ITO.
The Crown submits that the IP address included in the ITO was accessed 43 times out of 45 times during the period of time NCMEC captured data from September 24, 2013, to January 20, 2014. Therefore, the other IP addresses being only accessed once each does not undermine the issuance of the warrant.
Also, the Crown submits that the other two IP address belong to Quebec addresses in which the Justice of Peace had no jurisdiction.
The Court finds that the officer’s omission of the fact of the existence of two other IP addresses located in Quebec, which had been accessed once only on each site by the email address, did not breach his duty to provide full, fair and frank disclosure.
Open Network
At page 4 of the ITO, the officer indicated that he attended 334 Ellen Avenue in Cornwall on May 28, 2014, which is the address associated with the IP address 67.193.9.34.
At the preliminary inquiry, he testified that when he parked in close proximity to the address, he discovered an open “insecure” network called “Tiny Tiger-Guest”.
The Applicant submits that the officer made no attempts to determine the IP address of this network and this fact should have been disclosed in the ITO. An open network allows anyone with a Wi-Fi capable device (such as a mobile phone, tablet, or laptop) to access the insecure network from the street without being present in the residence at 334 Ellen Avenue. He again submits this is especially important given that the email address was accessed at two other IP addresses that are not referred to in the ITO.
The Crown submits that open networks occur in numerous locations including libraries, hotels and municipal buildings and this is not unique or probative. There is no nexus between the Quebec IP addresses and the open network in the vicinity of the Applicant’s home.
The Court must determine whether the existence of an open network in the vicinity of the address should have been disclosed to the issuing justice.
The affiant had no grounds to seek judicial authorization on the Tiny Tiger-Guest network and hence its inclusion was not needed to provide full, frank and candid disclosure to the issuing justice.
However, the Court has considered the Crown’s request to amplify the ITO to include the fact of the existence of the open network.
As stated at para. 59 in Araujo:
When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 1994 CanLII 1682 (BC CA), 48 B.C.A.C. 271, at pp. 285-90, and R. v Harris (1987), 1987 CanLII 181 (ON CA), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii). The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.
The Court finds that there was no intention on the part of the officer to mislead the issuing justice and that he acted in good faith. As stated in R. v. Morelli, 2010 SCC 8 at para. 42, “[a]mplication evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds”.
The Court concludes that the ITO should be amplified to include the fact that there was an open network in the vicinity of the Applicant’s home. The Court finds that the officer, believing he had reasonable and probable grounds for the warrant, without bad faith, omitted this detail and that it was a minor error on his part.
Also, the Court does not find that there is a nexus between the two out-of-province IP addresses and an insecure network. The Applicant has failed to establish a connection between these two facts.
Postal Codes
On page 4 of the ITO, the officer stated that RCMP Inspector Lange sent a law enforcement WHOIS search request to obtain subscriber information regarding the IP address at 67.193.9.34. The result of the WHOIS search was a postal code of K6H.
At the preliminary inquiry, the officer stated he had obtained K6J as the first three characters of the postal code of the IP address. The officer did not include the discrepancy of the two postal codes in the ITO.
The Applicant submits the affiant should have investigated the discrepancy of the postal codes and included this discrepancy in the ITO as he was required to provide full and frank disclosure to the issuing justice. He argues that this is an important consideration when requesting permission to enter the Applicant’s private premises.
The Crown submits that both K6J and K6H are Cornwall postal codes. The warrant for search was for a specific address, namely 334 Ellen Avenue, not a block of addresses. The inclusion of two different postal codes would not vitiate the grounds for obtaining a search warrant at the correct address. There is no factual nexus or evidentiary basis as to how this would have affected the reasonable grounds.
The Court agrees. The Court does not see how the WHOIS different postal code would have affected the obtaining of the warrant. The issuing justice would be interested in the address of the IP address, not the postal code.
As long as they were able to connect the IP address to the subscriber name and address, it is of no consequence that one of the three letters of the postal code is not accurate. These are not material facts. As stated in R. v. Nguyen, 2011 ONCA 465 at para. 51, materiality is “something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter”.
The Court finds that the officer’s omission of this discrepancy in postal codes does not result in the officer failing to provide full, frank and fair disclosure to the issuing justice. This information did not deprive the issuing justice of his right to assess all of the circumstances in deciding whether it was appropriate to issue the warrant.
Pluralisation of the Words “Officer” and “Witness”
On page 2 at para. B1 of the ITO, the officer states, “during my investigation into this matter, I have read police reports, occurrences, statements of witnesses and police officers”.
At the preliminary inquiry, the officer acknowledged that there were no statements from any witnesses and that the reference to police officers as plural was an error as there was only one officer involved, i.e. Lange.
The Applicant submits that those were misleading statements and the officer failed to be frank in his disclosure.
The Crown submits that the officer relied on evidence from various sources including Google, NEMEC, NCECC, Officer Lange and Cogeco, which would be “statements” in the plural.
The Court finds that there was no intention by the officer to mislead. He candidly admitted that there was only one officer. The Court finds that the evidence gathered from various sources could be construed as witness statements, but the officer admitted that there were no witness statements in the usual and general meaning of the words.
The Court concludes that the reference to “officers” should be replaced by “officer” and the reference to “witness statements” should be excised.
Reference to a Second Vehicle Present at 344 Ellen Avenue
At page 4 of the ITO, there is a reference that the officer observed two vehicles in the driveway on May 28, 2014.
The Applicant questions why the officer did not provide information about the registration of the second vehicle to the issuing justice. At the preliminary inquiry, the officer could not remember who owned the car and whether he believed it was relevant to inform the issuing justice.
The Court finds that the existence of a second car in the driveway was not a necessary fact that the officer had to disclose in order for him to meet his obligation of full and frank disclosure to the issuing justice.
Branton Error
The Applicant relies on R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 53 O.R. (3d) 737 (Ont. C.A.), where the authorities used an inappropriate form that permitted them to search for evidence “of suspected or intended commission of an offence”, thus rendering the warrant invalid on its face. The warrant was issued pursuant to s. 487(1)(b) of the Criminal Code, which limits a search to “evidence with respect to the commission of an offence”. The Court of Appeal found that the warrants were invalid on their face for failure to comply with s. 487 of the Criminal Code.
In Branton, the main issue of contention was that the affiant relied on information from another officer that had nothing to do with the investigation of the accused. The ITO contained misstatements of facts and led to ill-founded conclusions. In addition, the ITO provided case law but omitted a case against his interest. The Court of Appeal found a number of grounds as to why the contents of the warrant failed to satisfy the statutory grounds for issuing the warrant. The Court of Appeal does not discuss whether the offending words in the warrant can be severed. At para. 41, when dealing with the issue of costs, the Court stated: “The real misconduct here was the over seizure of the respondent’s goods”.
At the time the warrant was issued in this case, the new form had been in effect for two years and eight months.
At his examination held before me on September 11, 2017, the officer stated that he had just recently been made aware by the Crown in this case that the form had been replaced on January 1, 2012.
He stated that he had been a police officer since 2004 (13 years) and to date had been involved in 50 to 80 search warrants. He was the only officer searching the premises.
The Crown submits that the Branton error issue should be the subject of the Garofoli application and the offending words can be severed as was done in R. v. Nguyen, 2017 ONSC 1341. In that case, Justice Fairburn (as she then was), when dealing with the Charter application, referred to her previous Garofoli application and found that with the principle of severance, the Branton error did not lead to a breach. A copy of her Garofoli decision was not provided to me. She did, however, query as to why police authorities were not using the form that complied with s. 487 of the Criminal Code when it had been in existence for years.
Law
The cases diverge as to whether a Branton wording error can be severed from the warrant.
In R. v. Grabowski, 1985 CanLII 13 (SCC), [1985] 2 S.C.R. 434, the Supreme Court was not dealing with a Branton error but made general comments regarding warrants at para. 61:
When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated but are actually separate authorizations given in the same order, the Court in my opinion can divide the order and preserve the valid portion, which then forms the authorization. In such a case interceptions made under the valid authorization are admissible.
In R. v. Jacobson, 2004 CanLII 5912 (Ont. Sup. Ct.), Justice Ferguson found that the inappropriate words could be severed without affecting the terms of the warrant. This was also found in Canada (Commissioner of Competition) v. Falconbridge Ltd. (2003), 2003 CanLII 52144 (ON CA), 173 C.C.C. (3d) 466 (Ont. C.A.); R. v. Gladwin (1997), 1997 CanLII 1288 (ON CA), 116 C.C.C. (3d) 471 (Ont. C.A.); and R. v. Lachance (1990), 1990 CanLII 53 (SCC), 60 C.C.C. (3d) 449 (S.C.C.) at 456.
In R v. Sonne, 2012 ONSC 584, the Court found that the bad parts of the warrants could be severed from the good. The Court provided a comprehensive history regarding the severance of words in a warrant. Justice Spies refers to R. v. Paterson (1985), 1985 CanLII 167 (ON CA), 44 C.R. (3d) 150 (Ont. C.A.), where Martin J.A. found that an invalid basket clause in a judicial authorization of intercepted private communications was severable and does not affect the validity of the balance of the authorization.
In contrast, other cases have found that a Branton error renders the warrant invalid on its face and not capable of being severed.
In R. v. N.N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417, Justice Hill found that a Branton error is not a Garofoli issue, as the authorized searchers read the Form 5 warrant not the ITO. In his view, providing authority to those executing the search beyond what was set out in the ITO may give overly broad spectrum to those conducting the search. According to Justice Hill, this implicates an accused’s right to be free from search by invalid court orders. He confirms that the issue is whether the defective warrant form resulted in over-seizure beyond the limits of s. 487(1)(b), which results in an exclusion of evidence under s. 24(2). In that case, there was no evidence led as to whether any of the searchers read and acted upon the faulty warrant.
Justice Hill found that the Branton error invalidates the warrant. It constituted a s. 8 breach, which would be discussed within the context of the Charter motion. Ultimately, he found that no one was misled by the error.
In R. v. Machulec, 2016 ONSC 1883, Justice Munroe found at para. 257:
I agree with the approach advanced by Justice Coroza in Nurse, at para. 35: “It seems to me that the proper approach is to review the particular circumstances of a case where a Branton error is alleged and determine if there is a possibility for confusion or overly broad conduct not permitted by the section.”
- Justice Munroe found that there was no real possibility of confusion by the issuing justices and the officers executing the warrant. He stated at para. 258:
[W]hen read as a whole, this clause refers only to evidence of the past crimes of possessing child pornography by John Machulec. The continued use of the flawed Form 5 is unfortunate and unwise but here the search warrants were sufficiently clarified to avoid any confusion.
In R. v. Kramshoj, 2017 ONSC 2951, Justice Healey found that a Branton error rendered the warrant constitutionally invalid on its face. On the Garofoli application, she reserved her ultimate determination regarding whether the warrant would be quashed as there were other allegations of breaches under s. 8 of the Charter. She also did not have sufficient evidence as to why the updated form was not used, although it had been only in existence a short period of time.
Justice Healey followed Justice Bliss’ decision (unreported) in R. v. Pitocco (March 20, 2017 OCJ), where the Court concluded that a warrant containing a Branton error is invalid on its face and that severance is not available to correct such an error.
Conclusion on Branton Error
Counsel have not provided me with appellate decisions as to whether there can be a reliance on the principles of severing invalid parts of a judicial authorization if a Branton error exists.
The Court finds that a Branton error renders the warrant invalid on its face and hence it is a s. 8 Charter breach. It is not capable of being severed in a Garofoli application as the issue in such an application is whether the issuing justice could have issued a warrant based on the evidence as contained in an ITO. It does not, in my view, extend into severing the actual warrant on a Garofoli application.
Accordingly, the remedy for the Branton error will be dealt with in the Charter discussion below.
Conclusion on the Garofoli Application
- As stated by the Supreme Court of Canada in Morelli v. Her Majesty the Queen, 2010 SCC 8 at para. 40:
In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”. The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. [Citation omitted.]
- In Morelli, the Court invalidated the warrant when the Court had to:
− excise a misleading passage in the ITO that stated that the computer technician had viewed the images as opposed to viewing the two links to the websites;
− add improperly omitted information that the two links were exceptions within a larger group; and
− add improperly omitted information with respect to the presence of a web cam in the child’s playroom, which made the scene look less sinister.
Those misrepresentations fell below the standard of full and frank disclosure required in an ITO.
Regarding the effect of drafting errors, the Supreme Court in Bisson v. Attorney General of Canada (1994), 1994 CanLII 46 (SCC), 94 C.C.C. (3d) 94 at 95, states that:
[E]rrors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the [warrant] and do not by themselves lead to automatic vitiation.
- The issue is whether, after excising the erroneous information and/or adding that which was improperly omitted, there remains sufficient reliable information for the authorization of a warrant. R. v. Araujo asks at para. 51 whether:
In looking for reliable information on which the issuing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. [Emphasis omitted.]
- There was no attempt to mislead. There were inadvertent errors that have been excised and details that were inadvertently missed that have been added. This is still in the spirit of Araujo when the Court said at para. 47:
A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers…There is nothing wrong – and much right – with an affidavit that sets out the facts truthfully, fully, and plainly. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions. [Emphasis in original.]
- I find that the ITO, after excision and amplification as stated above, supports the conclusion that there were sustainable and reasonable grounds for the ITO’s affiant to believe that a search of the premise would likely produce the evidence set out in the appendix A of the ITO and that the authorizing justice could have issued the warrant.
Part 2: Charter Motion
Law
Everyone has the right to be secure against unreasonable search or seizure.
- Charter remedies are set out in section 24:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
R. v. Grant, 2009 SCC 32, sets out a three-stage inquiry in determining whether the evidence should be excluded: 1) seriousness of the Charter-infringing state conduct; 2) impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in the adjudication of the case on its merits.
The applicant has the onus of establishing, on the balance of probabilities, why the admission of the evidence in the proceedings would bring the administration of justice into disrepute. The purpose of s. 24(2) of the Charter is to maintain the reputation of the administration of justice and maintain the public’s confidence in the justice system.
It must first be determined whether or not there is a sufficient link between the Charter violation and the obtaining of the evidence. It is sufficient to establish that a Charter violation occurred during the course of obtaining the evidence. See R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 and R. v. Pino, 2016 ONCA 389.
Section 24(2) only permits exclusion of evidence that was “obtained in a manner” that infringed or denied any rights or freedoms guaranteed by the Charter.
Allegations of s. 8 Breaches
Failing to Report to the Justice as Soon as Practicable
The officer failed to comply with s. 489.1(1) of the Criminal Code by failing to report to a justice “as soon as practicable” in respect of property seized under the warrant. The warrant was executed on September 19, 2014, and the required report to the justice under s. 489.1 was filed on July 31, 2015, over ten months later. It was only done following a query from defence counsel.
The Applicant frames his motion as a breach of s. 8 of the Charter and also argues that this post-warrant conduct invalidates the warrant.
He relies on R. v. Garcia-Machado, 2015 ONCA 569, where the Ontario Court of Appeal found that failure to report pursuant to s. 489.1(1) is a breach of s. 8 of the Charter. The officer filed his report to a Justice 15 weeks after the blood and hospital records were seized. The Court found the judicial oversight of property in which the accused maintained a residual privacy interest was compromised. The Court found this to be a Charter breach due to the continued detention of the seized item.
At the trial, the judge excluded the evidence. He found that the constable had not acted dishonestly, in bad faith or with wilful or reckless disregard. The constable was careless and negligent. The judge found it was a substantive not a technical or minor breach and that the failure to report had effectively ousted the court’s supervisory role.
The breach impacted the accused’s Charter-protected interests as the blood and medical records intruded into areas where he had a high expectation of privacy. After balancing this with society’s interests in an adjudication on the merits, the judge excluded the evidence.
The Ontario Court of Appeal noted that there were divergent views as to whether the failure to report under s. 489.1(1) is a breach of s. 8 of the Charter.
The Court discussed R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, where the Supreme Court found that s. 8 continues to apply to protect an individual’s privacy rights of seized items during detention of the seized items. The Supreme Court found that the constable’s failure to comply with the requirements in s. 489.1(1) to report to a justice as soon as practicable rendered the continued detention of a seized item unreasonable and therefore contrary to s. 8 of the Charter.
The Court of Appeal described the Code provisions and the rationale for the reporting to the justice after the warrant has been executed. It bears repeating here.
The Court of Appeal found that the s. 489.1(1) requirement plays a role in protecting privacy rights. The Court can consider that a person may have a diminished reasonable expectation of privacy after a lawful police seizure.
As stated by Rosenberg J.A. in R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.) at para. 110, s. 489.1 “favours judicial supervision. It is part of scheme that includes s. 490 and that is designed to regulate state activity that interferes with privacy interests.”
S. 489.1 not only engages judicial oversight of state-held property, but also ensures that a record is made of what was actually seized.
S. 490(2) requires the state to give notice to the person from whom the detailed thing was seized if the state wishes to obtain an extension beyond the initial three-month detention period. Notice allows the affected person the opportunity to argue that that the nature of the investigation does not warrant the detention of the items seized. Another aspect of the section is that the person can apply for the return of the item.
At para. 55 in Garcia-Machado, the Court stated:
The recording of the items seized, the right to notice and the right to apply for return of things seized confer important protections on people whose items the state holds in detention. Compliance with s. 489.1(1) is the gateway to all of these protections. The appellant failed to report to a justice for over three months after the blood and hospital records were seized. Effective judicial oversight of property in which the appellant maintained a residual privacy interest was compromised. I conclude therefore that the Constable’s clear failure to comply with the requirement in s. 489.1(1) that he report to a justice as soon as practicable breached s. 8 of the Charter. I leave for another day whether any other breach of s. 489.1(1) or any breach of s. 490 – even if so minor or technical as to have no real impact on the judicial oversight contemplated by the sections – would breach s. 8 of the Charter.
- The Court of Appeal found that the trial judge failed to consider a number of relevant factors in assessing the seriousness of the breach and the impact of the breach on the Charter-protected interests of the accused as follows:
− As per R. v. Cole, 2012 SCC 53, in assessing the impact of the breach, the trial judge should consider the nature of the respondent’s reasonable expectation of privacy at the time of the breach. In Cole, a work-issued laptop computer was seized without a warrant. The Supreme Court found that the trial judge, in assessing the impact of the breach, had failed to consider the applicant’s diminished reasonable expectation of privacy in a work-related computer. In Garcia-Machado, the respondent had a minimal residual privacy interest in the blood sample and hospital records when the reporting period had lapsed.
− The trial judge did not consider that the property seized was specifically authorized by the warrant and the property was used for the precise purpose for which it was obtained. He had a reasonable expectation that it would be used for the purposes for which it was obtained.
− If the officer had made the report as soon as practicable, the Justice of the Peace would have undoubtedly ordered detention of the evidence as it was needed for the investigation.
− The trial judge did not focus on the nature of the property as the respondent was not deprived of the use or enjoyment of the items, which are different than a smart phone or computer.
− This was a case of delayed compliance, not non-compliance.
− The officers were ill-informed and not familiar with the timing requirement.
The Applicant also relies on R. v. Mayo, 2016 ONSC 125, where the court found that there was a s. 8 breach when a report regarding hard drive information involving child pornography was not filed until three months after the initial seizure.
In Attorney General of Canada (on behalf of the United States of America) v. Yvette Mathurin, 2015 ONCA 581, the appellant submitted that that the failure to file reports to the issuing justice or obtain a corresponding order for ongoing detention of the items violated the appellant’s Charter rights in light of the fact that the authorities detained the seized items. The court referred the matter back to the extradition judge to determine, in light of Garcia-Machado, whether the failure to report could invalidate a previous search warrant. The extradition decision is not before me.
The Crown argues that the failure to report as soon as practicable is a “fleeting and technical” breach as described in para. 76 of Grant. Counsel relies on R. v. Church of Scientology, where the Court found that reporting is an administrative function that does not lead to a breach.
In R. v. Kift, 2014 ONCJ 454, the Court found that the reporting was an administrative function only where the “items seized” are computers and devices containing child pornography that cannot be returned to their rightful owner and the Justice of the Peace would not return them to the owner. See also R. v. Arason (1992), 1992 CanLII 1008 (BC CA), 78 C.C.C. (3d) 1 (B.C.C.A.); R. v. McCarthy (1995), 27 W.C.B. (2d) 376 (Ont. C.A.); R. v. Persaud, [2008] O.J. No. 5077; and R. v. Vienneau, 2010 NBPC 19.
These cases were decided before Garcia-Machado.
Therefore, the court finds that the officer’s failure to report to the Justice as soon as practicable is a breach of the Applicant’s s.8 Charter rights.
Here, the failure to file a report was ten months. This is an inordinate amount of time and is a serious breach of s. 8. This breach deprived the Applicant of the court’s supervisory role over his privacy rights for ten months.
The Court is not prepared to find, in the facts of this case, that the failure to report rendered the warrant invalid retroactively. No jurisprudential authority for this proposition has been provided to the Court.
Spencer Issue
The officer advised the issuing Justice that he had obtained the subscriber information before the release of R. v. Spencer, 2014 SCC 43. In that case, the Supreme Court found that the state must obtain prior judicial authorization to obtain subscriber information associated with an IP address. The officers cannot just obtain the subscriber information from the Internet Service Provider (ISP). In Spencer, the Supreme Court found that there was a reasonable expectation of privacy given the nature of the privacy interest at stake, taking into consideration the statutory and contractual framework governing the ISP disclosure of subscriber information.
As Justice Cromwell stated at para. 18:
The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be grouped under four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances: Tessling, at para. 32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 27; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40. However, this is not a purely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42. Thus, while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: Patrick, at para. 14; see also R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, and Ward, at paras. 81-85.
At para. 47, he stated that subscriber information “…by tending to link particular kinds of information to identifiable individuals, may implicate privacy interests relating not simply to the person’s name or address but to his or her identity as the source, possessor or user of that information”.
In Spencer at para. 74, the Court stated:
The subscriber information obtained by police was used in support of the Information to Obtain which led to the issuance of a warrant to search Ms. Spencer’s residence. Without that information, the warrant could not have been obtained. It follows that if that information is excluded from consideration as it must be because it was unconstitutionally obtained, there were not adequate grounds to sustain the issuance of the warrant, and the search of the residence was therefore unlawful. I conclude, therefore, that the conduct of the search of Ms. Spencer’s residence violated the Charter: Plant, at p. 296; Hunter v. Southam, at p. 161. Nothing in these reasons addresses or diminishes any existing powers of the police to obtain subscriber information in exigent circumstances such as, for example, where the information is required to prevent imminent bodily harm. There were no such circumstances here.
After following the three-step analysis under Grant, the Supreme Court found the evidence should not be excluded under the Charter. In summary, the Court found that officer believed that the request to the ISP was authorized by law and that ISP could consent to provide the information to him. He also testified, however, that he was aware that there were decisions both ways on the issue of whether this was a legally acceptable practice. The lower courts had concluded that the officers were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose. In the second inquiry, the Court found that this was serious infringement of the Charter as anonymity is an important safeguard for privacy interests online and this analysis weighed in favour of excluding the evidence. Finally, the third factor of society’s interest in an adjudication on the merits in serious offences which carry minimum fines. If the evidence was excluded, the Crown would have no case. The Court found that the evidence was reliable and was admitted by the defence at trial to constitute child pornography. The court found that society had an interest in seeing a full and fair trial based on reliable evidence for a crime which implicates children.
In R. v. Singh, 2015 ONCJ 328, the Court found that even the information obtained before the release of Spencer breached the accused’s Charter rights. The Court found that even though the search was unconstitutional, it was conducted while the law was in a state of flux and the breach was not egregious.
However, the second search was conducted in 2015, relying on the original warrant obtained on May 28, 2013, before Spencer. The Court found the second search was also unconstitutional. The Court found the officer’s conduct in conducting the second search was not done in good faith. They knew in the second search that the first search was unconstitutional based on Spencer. The Court found this was not a minor or technical breach of the accused’s s. 8 rights and they were in possession of hard drives seized from Mr. Singh’s home pursuant to R. v. Spencer.
On many occasions, the court has found that there is strong privacy interest in information contained in computers and personal electronical devices. Unlawful searches of computers heavily infringe on s. 8 rights. The officer executed the warrant having obtained IP information from a law enforcement request after the release of the R. v. Spencer case where the Supreme Court required law enforcement to obtain information only after obtaining a warrant.
The Court finds that the failure to obtain the subscriber information without prior judicial authorization was a breach of the Applicant’s s. 8 Charter right.
Should the evidence obtained from the warrant be excluded pursuant to the Charter?
- I now turn to the analysis under Grant.
- The seriousness of the Charter-infringing state conduct
The first inquiry involves measuring the seriousness of the violation. Some considerations are: absence of reasonable grounds, existence of circumstances that attenuate the seriousness of the violation, did the police act in good faith, whether there was ignorance of Charter standards, negligence or willful blindness.
Here, the Court can consider the fact of the officer’s reliance of earlier judicial authority and his own assessment, and a finding of good faith will follow. See R. v. Duarte (1990), 1990 CanLII 150 (SCC), 53 C.C.C. (3d) 1 (S.C.C.) and R. v. Colarusso (1994), 1994 CanLII 134 (SCC), 87 C.C.C. (3d) 193 (S.C.C.).
As stated in Grant, the more severe or deliberate the conduct by the officers that led to breaches of the Charter, the greater the need for the court to dissociate itself from this conduct by excluding the evidence linked to this type of conduct.
In this line of inquiry, the court must determine the state conduct along the fault line stated by the Court of Appeal in R. v. Kitaitchik 2002 CanLII 45000. At para. 41, the Court of Appeal stated:
41In any event, I do not think that appellate review of a trial judge’s s. 24(2) assessment should fixate on the legal label the trial judge attached to the police conduct. The nature of police conduct, by the officer or officers involved in the breach an don an institutional level, is an important consideration when calibrating the seriousness of the Charter breach. Indeed, where that breach does not implicate the trial fairness, the nature of the police conduct will often determine whether the evidence should be excluded. Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights. See Hill, “The Role of Fault in Section 24(2) of the Charter, the Charter’s impact on the Criminal Justice System (1996) at p. 57 (Cameron, ed). What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
- This was reiterated by the Supreme Court in R. v. Harrison at para 23;
The trial judge found that the police officer’s conduct in this case was “brazen”, “flagrant” and “extremely serious”. The metaphor of a spectrum used in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor. The court refers to the above quote at para. 41.
Branton error
Regarding the Branton error, this has the effect of a warrant being invalid on its face as it is not in compliance with the Criminal Code provision. A Branton error results in wording in a warrant that could cause officers to seize unauthorized items.
The officer was not aware of the new form until recently. It was an honest mistake based on ignorance and the Court finds that the officer is sincere that he was not aware of the change of forms.
The officer prepared the warrant that was an old form but was not misguided by it. The officer’s use of the outdated form was inadvertent.
The issuing Justice also failed to notice the difference in wording in the ITO and the warrant and specifically that the wording of the warrant did not correspond to the wording of the Criminal Code s. 487.
Spencer breach
Regarding the Spencer issue, again this is a serious issue that infringed on the Applicant’s expectation of privacy, which when dealing with computers and electronic devices in the privacy of your home, elevates the seriousness.
As discussed above, the officer advised the issuing justice of the fact that the subscriber information was obtained pre – Spencer.
The reasoning for this disclosure in the ITO was not explored by counsel in examination at the preliminary inquiry. Nevertheless, the court finds that his disclosure of this fact to the issuing justice exhibits an honest and candid attempt to advise the issuing justice of the state of affairs. His reference to a court decision exhibited a knowledge of the case law.
Here, on May 20, 2014, the officer obtained subscriber information. R. v. Spencer was released in June 2014. The officer submitted the ITO to the issuing justice on September 17, 2014, with subscriber information. This is three months after Spencer was released.
Report to the Justice
Regarding the failure to report issue, the Court finds that the officer did not comply with the important judicial oversight procedure as outlined in the Code. It breaches the Code provisions that deal with the detention of seized items.
Here, the officer was careless and derelict in his duty in complying with the Criminal Code provisions. He was only reminded by counsel for the accused as he sought Crown disclosure. Officers must recognize that seizing personal items, especially when they contain information where there is an expectation of privacy, must be subject to judicial oversight.
Regarding his failure to report as soon as practicable, he was careless with respect to his failure to report and. appeared apologetic on the failure to report. He labelled this failure as negligent in his notes. The Court agrees with this characterization. Negligence can undermine the goal of ensuring state adherence to rule of law.
Summary
The Court finds that there were not deliberate and reckless violations of Charter rights but the ignorance of the new Branton form, his negligence in failing to report to the justice and the Spencer breach place the state conduct nearer to the serious end of the fault line described in Kitaitchik.
Although there was not a deliberate or egregious conduct in these Charter breaches, the number of breaches make state conduct serious in this step.
Accordingly, the Court finds this analysis favours the exclusion of the evidence.
- The impact of the breaches on the Applicant’s Charter-protected interests
The second inquiry involves measuring the impact of the breach on the accused by evaluating the extent of the intrusion into protected interests. The more serious the impact, the greater the risk admission of evidence would suggest that the courts do not take the Charter seriously.
The court must ask whether the violation seriously compromised the Applicant’s interest and was the impact “merely transient or trivial in its impact”.
The accused would have a higher expectation of privacy in his own home than a search of his motor vehicle. Here, we are dealing with privacy interests, which is a right accorded a high level of protection. The privacy interest is significant. Intrusions into interests where there is a higher degree of privacy expected by individual such as homes and computers are more serious.
The court must look at the extent to which the Charter violation actually undermined the protected interests of the Applicant.
Branton error
The Branton error did not lead to any officer being misled as the officer was the only one who executed the warrant. As discussed above, the Branton error affects the ambit of the search, which could lead to unauthorized items being seized. This did not occur in this case.
This was not an egregious breach, made by mistake, not in malice or bad faith. Both counsel referred me to the Kramshoj case as it had the similar breaches of the Branton error, failure to report as soon as practicable and a Spencer issue. However, the facts were quite different. In that case:
− The police seized items from the home with no assurance that they contained any of the evidence described in the warrant.
− The search was done hastily.
− Photos were taken of exhibits after moving them.
− A black book that was seized was not authorized by the warrant.
− The authorities took a photo of the first page, when nothing on the face of the book would suggest that it contained porn.
− One officer was searching for books or other printed materials which not necessarily suggestive of child pornography.
− The ITO indicated that they would conduct a cursory search of the located computers under s. 487(2.1) to determine content. This was not done on-site. Hence, they removed things without authority under the warrant.
− There was a second additional search years later that was not permitted by the warrant.
− There was more than one officer reading and executing the warrant.
In Kramshoj, the defence was very concerned with the loss of a letter from Rogers that included personal information regarding the accused’s account, which was important to the defence as it could be evidence that someone other than accused had accessed his computer. In addition, it was troubling that the fact that a photo was taken was not documented by the police.
Justice Healey ultimately excluded the evidence.
Here, the Court finds that, since the officer prepared the ITO and executed the warrant, it was clear to him what he was seeking: evidence regarding an offence that had been committed, i.e. possession of child pornography. Unlike in Kramshoj, he restricted his search and seizure to those items set out in Appendix A to the warrant, which related to the commission of an offence.
Essentially, he was acting on the premise that he was seizing the items set out in the Appendix A which include a computer system, devices, communications and passwords and it relates specifically to alleged offences set out in the ITO. Appendix A to the warrant specified the residence of the Applicant at 334 Ellen Avenue in Cornwall.
Since he conducted the search, he was aware of the ambit of what he had set out in the ITO. He was the only one conducting the search. No one was misled.
Here, the officer abided by the terms and conditions in the warrant as it related to the commission of the offence and in accordance with Appendix A.
The warrant was executed within a reasonable time frame.
The use of the Branton form did not result in seizure of unauthorized evidence. I find that there was no possibility that anyone was confused or misled by the inclusion of the erroneous language.
Since nothing was seized as a result of the offending words, the breach did not actually negatively affect the interests of the Applicant and hence, weighs in favour of inclusion of the evidence.
Spencer breach
Regarding the Spencer breach, when the officer obtained the subscriber information from the IP address, Spencer had not been decided. The search warrant was issued in September 2014, approximately three months after the decision.
When the officer obtained the subscriber information from the IP address, Spencer had not been decided. The search warrant was issued in September 2014, approximately three months after the decision.
Although it is a serious breach, the officer was using a warrant that relied on subscriber information that was legally obtained before the decision was rendered. He did advise the issuing Justice, who chose to issue the warrant anyway.
Given that the officer received the information in good faith before the law changed, and disclosed that to the issuing justice, there is an absence of malice, just error in reliance on the law as it existed. As for the impact on the protected interests, it would be artificial to require him to have gone back to get a production order for information he already had. Given that the same result could have been obtained if he got the production order, the actual result for the accused (i.e. impact on his interests) would not have been much different. And thirdly, the same issues regarding the seriousness of the charges and the impact of the exclusion of this evidence apply.
Nevertheless, as discussed in Grant, the Applicant had an expectation of privacy regarding anonymity when on line. The violation of that anonymity by the police affected the Applicant’s personal choices. This analysis weighs in favour of excluding the evidence.
Report to the Justice
In Kramshoj, there was a 15-week delay in reporting to the justice. This, coupled with the Branton error and seizing of items that were not in the warrant, resulted in exclusion of evidence in that case.
The Crown submits that a delay in reporting to the justice cannot retroactively invalidate a warrant. The Applicant has failed to show that he has suffered prejudice.
The officer’s lack of follow through deprived the accused of the opportunity to request the return of his property.
S. 490 permits the officer to obtain a three-month extension, which allows the accused the opportunity to request his property. This was not done.
However, the items seized were child pornographic images, which are illegal to possess. The Court finds that the Applicant was not prejudiced by the lateness of reporting as the Applicant would not have been able to have his items returned. The impact of this breach is diminished as the Applicant would not be able to have the return of his computer and images of child pornography.
The court finds that the Charter violations did not extensively undermine his protected interests. The Court finds that step weighs in favour inclusion of the evidence.
- Society’s interest in the adjudication of the case on its merits
The third inquiry involves measuring the importance of truth seeking. This line of inquiry considers society’s interest in the adjudication on the merits. The more reliable the evidence, the more likely exclusion of the evidence would bring the administration of justice into disrepute.
The importance of the evidence to the success of the prosecution is a factor. In serious crimes, there is a vital interest in ensuring that the justice system is “beyond reproach”.
Society has a significant interest in seeing cases heard in court and adjudicated on their merits. Clearly, society is interested in the adjudication of serious crimes dealing with abuse of vulnerable members of the community: i.e. children. The laws in this area are aimed to deal with those individuals who support the industry by taking images of young children in a criminal manner and who continue to abuse them. People who access child pornography promote this industry.
However, as per Harrison, the seriousness of the offence must not be given disproportionate significance. The nature of these heinous crimes should not cloud the issues. As has been previously said, even those charged with the most despicable crimes that abhor our community are entitled to the protection of their rights. If we curtail the rights of the accused, then it affects our criminal justice system’s reputation. The Court must ensure that the courts maintain the integrity of the criminal justice system so that citizens can rely on the upholding of Charter rights when an investigation of crime takes place.
The officer found real evidence including 9888 images of child pornography and 150 movies of child pornography. The admission of this evidence would serve the Court in its truth-seeking function in this trial. If the Court were to exclude the evidence, the Crown will be without a major source of evidence. The only other evidence that the Court has been advised of is the voluntary statement made by the Applicant. R. v. Grant stipulates that the community and society are interested in ensuring that those who break the law are brought to trial. This is reliable evidence.
It is clear from R. v. Grant that the public interest in ensuring that there is a determination of a matter on its merits is balanced with the duty to protect the individual’s rights under the Charter.
This is not a case of conscriptive evidence, for example where an individual’s right to remain silent was breached.
The public’s interest in adjudicating a case on its merits analysis favours inclusion of the evidence.
The final stage of balancing
In this part of the inquiry, the court must, after reviewing the various relevant factors in the above 3 steps, decide whether the admissions of the evidence obtain by the Charter breaches “would” bring the administration of the justice into disrepute.
This is not simply a question of whether the majority of factors favour exclusion. The Court must consider the long-term repute of the administration of justice.
As stated in R. v. Harrison, 2009 SCC 34 at para. 36:
The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
The Court finds that the Charter violations did not affect the reliability of the seized evidence.
After considering the three-step analysis in Grant and in all the circumstances discussed above, the Court finds in favour of the inclusion of the evidence as it would not bring the administration of justice into disrepute.
Accordingly, the Court dismisses the Applicant’s motion.
Justice A. Doyle
Date: 2017/10/16
CITATION: R. v. Pahle, 2017 ONSC 6164 COURT FILE NO.: 14-C-1835-00-0 DATE: 2017/10/16
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. Mathieu Pahle
BEFORE: Justice A. Doyle COUNSEL: Monica Heine, Counsel for the Crown James Harbic, Counsel for the Accused Applicant HEARD: September 11, 2017 (Cornwall)
RULINGS ON GAROFOLI APPLICANTION AND CHARTER MOTION
Justice A. Doyle
Released: 2017/10/16
CITATION: R. v. Pahle, 2017 ONSC 6164 COURT FILE NO.: 14-C-1835-00-0 DATE: 2017/10/16
AMENDMENT TO THE ORIGINAL DECISION
On October 16, 2017, the Court released its rulings on the Applicant’s Garofoli application and Charter motion . (2017 ONSC 6164)
It has been brought to the attention of the Court that at paras. 144 and 150, the search of the Applicant’s residence in accordance with the search warrant was conducted by only one officer namely the one who had prepared the ITO.
Other officers were involved in the search and the seizures of items from the Applicant’s residence.
This does not affect the Court’s decision on this application and motion whereby:
No one was misled or confused by the erroneous language in the warrant due to the Branton error;
The officers abided by the terms and conditions set out in the warrant as it related to the commission of the offence in accordance with Appendix A;
The use of the Branton error form did not result in the seizure of unauthorized evidence; and
Nothing was seized that should not have been seized as a result of the offending words.
Therefore, the breach did not negatively affect the interests of the Applicant and therefore, weighs in favour of the inclusion of the evidence.
Justice A. Doyle
Released: 2018/09/04
